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Labor Relations Update

Third Circuit Holds Former NLRB Member Becker’s Recess Appointment Invalid, Vacates NLRB Decision Made In August, 2011

By Ronald Meisburg on Posted in Uncategorized

The United States Court of Appeals for the Third Circuit has held that the President’s recess appointment power is limited to intersession recesses, i.e., those recesses which occur (if they occur at all) between sessions of the Congress.  In so doing, it held the March, 2010 recess appointment of former NLRB member Craig Becker to be invalid, and vacated a decision issued by a three member panel in which he participated.  National Labor Relations Board v. New Vista Nursing and Rehabilitation, Case Nos. 11-3440, 12-1027, 12-1936 (May 16, 2013).

The Third Circuit agreed with the DC Circuit’s earlier decision in Noel Canning, on the intersession versus intrasession recess issue, and did not reach the issue of when the vacancy for which the appointment was made needs to have arisen.  (The DC Circuit had held that the vacancy must also arise during an intersession recess.)

Theoretically, the Third Circuit’s decision could be applied to all decisions by three member panels on which former Member Becker served.  However, because many of those decisions may be closed, it is difficult to determine what the effective reach of the Third Circuit’s decision may be.  Although the earlier DC Circuit decision in Noel Canning involved only the members of the current Board (Member Block and Member Griffin), its rationale also applies equally to Member Becker (and other former intrasession recess appointees).  Earlier this year, following its issuance of the Noel Canning decision, the DC Circuit ordered a case challenging a rule making in which Member Becker participated held in abeyance.

It is now clear that orders and other actions of the Board which do not involve at least three valid members acting, are subject to rejection by the DC Circuit and the Third Circuit.  It is not yet known whether the Third Circuit will follow the DC Circuit in holding all further cases presenting the issue in abeyance pending the outcome of the government’s petition for Supreme Court review in the Noel Canning case.  It is also unknown at this time whether the NLRB will either seek reconsideration or Supreme Court review of the New Vista decision, or whether it will alter its policy of continuing to issue decisions in the face of this new adverse decision on the recess appointment issue.

No Surprises in Senate Committee Hearing on NLRB Nominees

By Ronald Meisburg on Posted in NLRB, Uncategorized

There were no real surprises at today’s Senate HELP Committee’s hearing on President Obama’s five NLRB member nominees. The Senate Committee members agreed that the nominees were well qualified for the jobs, and thanked them for their willingness to undertake public service.  The nominees spoke about their backgrounds, their desire to apply the law as written and fairly, and their respect for the NLRB as an institution.

But it is clear that there is a partisan divide over the NLRB and its direction over the past four years.  This was illustrated most clearly when Senator Scott of South Carolina expressed his displeasure to NLRB Chairman Pearce over the Board’s decision in Karl Knauz Motors, and Senator Warren of Massachusetts followed up with a question allowing the Chairman to further explain that decision.

Perhaps the only “electric” moment in the proceedings was when Senator Sanders of Vermont asserted, “What this debate is about is Republican obstructionism.”  Senator Sanders then proceeded to criticize what he views as the excessive use of filibusters by Republicans in the Senate, and threatened to push for a change in the Senate rules which would forbid a filibuster on pending Presidential appointment nominees and allow a straight up or down vote on the nominees on the Senate floor.

This was followed by a colloquy between Committee Chairman, Senator Harkin and Ranking Member, Senator Alexander, concerning the nature of the Senate and its traditions, processes and procedures.  It is safe to say that one Senator’s obstruction is another Senator’s deliberation.  It is also safe to say that most Senators have perfected the art of disagreeing without being disagreeable, at least to one another.

A vote is currently scheduled for next Wednesday, May 22, in which the Committee can be expected, along party lines, to vote the nominees out of Committee and to the Senate floor for consideration.  At that point it is anticipated that one or more of the nominees will be filibustered.  If the nominees are stopped by the filibuster, and NLRB Chairman Pearce’s term is allowed to run out on August 27, then there will either need to be some kind of political deal or a possible second round of recess appointments to keep the Board in the business of deciding cases and taking other actions reserved to the Board.

In the meantime, under the direction of the Acting General Counsel, the NLRB regions will continue to process charges and election petitions, and Administrative Law Judges will continue to hold hearings, seemingly unaffected – at least for now – by the legal troubles surrounding the Board appointments.

 

DC Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

By Mark Theodore on Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Section 8(a)(1), Unfair Labor Practices

A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National Labor Relations Act.   The NLRB’s rule has been controversial from the start as it didn’t just require the posting of a notice of “employee rights.”  Rather, it included some items that would additionally expand the NLRB’s reach over employers in three unpleasant ways.  First, the rule made the failure to post the notice an unfair labor practice.  Second, it stated that failure to post the notice could be evidence of “anti-union-animus.”  Third, the rule stated that failure to post may toll the Act’s six-month statute of limitations as to other unrelated activities. 

When the rule was promulgated (over a din of complaints), it was immediately challenged in South Carolina and in the District of Columbia.  As we previously reported, here and here, both Federal District Courts invalidated the rule.  In light of the serious questions about the rule the DC Circuit granted an injunction staying the rule pending the appeal.  The South Carolina case is still pending before the Fourth Circuit.

The DC Circuit’s opinion in National Association of Manufacturers et. al. v. NLRB (DC Cir. May 7, 2013), vacates the rule, finding it violates various provisions of the National Labor Relations Act.  In the prior case, the District Court rejected the free speech argument made by the challengers.  The Court of Appeals, however, rested much of its decision on employer free speech rights, ruling that two of the three enforcement mechanisms (failure to post is itself an unfair labor practice and failure to post may be evidence of unlawful motive) clearly violated the often ignored free speech provision of the Act.  The Court also ruled that the NLRB cannot simply toll the six month statute of limitations by regulation.  This, of course, is an important case because it directly addresses issues that have been raised since the rule was promulgated, and gives a clear analysis of the existing law which undoubtedly will be used in other cases.

Board Had A Quorum To Promulgate The Rule

The DC Circuit addressed an issue not raised by either party but significant nonetheless as it gives some insight into the depth of the recess appointment issue.  At the time the rights poster rule was issued, three of the four members of the then existing NLRB (Chairman Liebman and Members Pearce and Hayes) were confirmed by the Senate.  The fourth member, Craig Becker, had received a recess appointment.  The Court stated, “To the extent that Noel Canning applies — we assume, without deciding, that it does–Becker’s appointment was constitutionally invalid.”  The Court ruled that the promulgation occurred as of the date Chairman Liebman signed the final rule on August 22, 2011, shortly before her term expired, meaning the Board had a quorum of three members.  The reference does foreshadow a potential future problem for the NLRB:  decisions handed down after Chairman Liebman left in August 2011 means the Board actions may be invalid due to a lack of quorum during an extended period.

The Poster Violates Employer Free Speech

The Court noted that the proper starting place is Section 8(c) of the Act, “which seems to us to control much of the case.”  Section 8(c) provides the employer’s right of free speech in matters concerning unions, and is very clear:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The Court held that, “[a]lthough § 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.”

The Court explained that by requiring employers to post or be found guilty of an unfair labor practice, the rule violated the employer’s right to not make certain speech:

Of course, we are not faced with a regulation forbidding employers from disseminating information someone else has created.  Instead, the Board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice.  But that difference hardly ends the matter.  The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it. 

In other words, the NLRB’s attempt to compel employers to give only one side of the debate over unionization violates its Section 8(c) right to choose what to disseminate to its own employees.  The Court explained further:

We return then to the question with which we began.  Suppose that § 8(c) prevents the Board from charging an employer with an unfair labor practice for posting a notice advising employees of their right not to join a union.  Of course § 8(c) clearly does this.  How then can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)?  Like the freedom of speech guaranteed in the First Amendment § 8(c) necessarily protects–as against the Board—the right of employers (and unions) not to speak.  This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union. 

The Court then held that the poster rule violates Section 8(c) because it not only makes failure to post an unfair labor practice, it also treats such failure as “evidence of anti-union animus.”  NLRB case law is rife with findings of “anti-union animus” based on mere opposition to a union, and surely this decision will be cited in future cases as authority that the agency may not merely classify lawful speech as evidence of an unfair labor practice.

NLRB May Not Toll Statute of Limitations By A Failure To Post

The Court then addressed the portion of the NLRB’s rule that says the statute of limitations under the Act can be tolled by a failure to post.  The Court found this provision violated Section 10(b) of the Act, which states:

no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and with a service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.

The Court noted that under the doctrine of “equitable tolling,” which was the basis relied upon by the Board in making its rule, it must be rooted in congressional intent.  Section 10(b) was added in 1947, while much of the “equitable tolling” cases occurred in unrelated statutes passed decades after the NLRA.  The Court scolded the Board for its attempt to expand the statute of limitations:

The short of the matter is that the Board has not invoked any authority suggesting that the 1947 Congress intended to allow § 10(b) to be modified in the manner of the Board’s tolling rule.  Whether one frames the Board’s tolling rule as resting on the employer’s failure to post the Board’s notice or on the charging employee’s lack of knowledge of his rights under the National Labor Relations Act, the Board marshaled nothing to show that by 1947 this was a generally accepted basis for tolling limitations periods.

The three judge panel vacated the rule in its entirety.  Two of the three judges would have gone farther, questioning whether the NLRB had a right to promulgate any rule requiring a notice posting.

What now?  For the time being the rule remains invalid.  There is some chance this will be appealed, but the Board may wait to see what happens with the Fourth Circuit case.

U.S. Government Formally Seeks Supreme Court Review Of Recess Appointment Case

By Mark Theodore on Posted in NLRB, Rulemaking

As noted here earlier, the government announced its intention to seek Supreme Court review of the DC Circuit decision which held that the President’s recess appointments to the NLRB were unconstitutional.  The 138 page document NLRB v. Noel Canning, A Div. of Noel Corp., Cert Petition (April 24, 2013) was filed with the U.S. Supreme Court yesterday. 

The petition sets forth many of the same arguments made before the Court of Appeals, and concludes with the following:

Review by this Court is warranted to resolve the circuit conflict created by the decision below, to remove the resulting constitutional cloud over the acts of past and present recess appointees, and to restore the President’s capacity to fill vacant offices temporarily when the Senate is unavailable to give its advice and consent.

Of course, those who have business pending before the NLRB know that the term “temporary” is used loosely.  The appointees at issue had held their position for over a year at the time of the dispute.   Assuming the Supreme Court grants the petition, which seems likely given all the confusion out there about the validity of the NLRB’s actions, the case will be heard in the term starting October 2013.

General Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations

By Ronald Meisburg on Posted in Confidentiality, Investigations, NLRA, NLRB, Witness statements

As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations.  The Board found that such a policy chilled the right of employees to engage in the protected concerted activity of discussing such workplace concerns. 

The Board further held in Banner Health that, in order to minimize the impact on that right, an employer must first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.   The Board concluded that the employer’s “blanket approach” of “maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct” violated Section 8(a)(1) (prohibiting employers from interfering, restraining or coercing employees in the exercise of their rights).  Slip opinion at 2.

Recently, the NLRB’s General Counsel’s Division of Advice released a memorandum which offered additional guidance in this area.  The memorandum was issued following a settlement reached in Verso Paper, Case 30-CA-089350 (January 29, 2013).  There, the employer maintained a Code of Conduct which included the following provision prohibiting employees from discussing ongoing investigations (italics added):

Verso has a compelling interest in protecting the integrity of its investigations.  In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence.  If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.  

Based on the Banner Health decision, the Division of Advice in Verso Paper found that the italicized portion of this provision violates Section 8(a)(1), because it did not take into account the employer’s burden to demonstrate in each case that the employer has a business justification for the confidentiality rule that outweighs employees’ rights to discuss such workplace concerns. 

However, the Division of Advice took the extraordinary step of providing what it would consider lawful language to replace the italicized language above.  In footnote 7 of the Advice Memorandum it stated: 

We note that the first two sentences of the Employer’s rule lawfully sets forth the Employee’s interest in protecting the integrity of its investigations.  Consistent with Banner Health, the Employer could modify the remainder of the rule to lawfully advise employees that:

Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Advice Memorandum at p. 3, n. 7.

The combined language could help bolster an employer’s argument in a given case that a confidentiality instruction was not for the purpose of “chilling” Section 7 activity.  While the language does not by its terms relieve the employer from making the determination required by Banner Health, which is Board law, it lawfully allows an employer to advise its employees in advance that if such a determination is made (i.e., if the employer “reasonably imposes such a requirement” of confidentiality), the employees must abide by it on pain of “disciplinary action up to and including . . . termination.”  It remains to be seen how this will play out in specific cases, but it is clear that the Division of Advice would look favorably on such language. 

 

NLRB: Employer Responsible For Backpay Of Union Representative Allegedly Injured During Workplace Assault

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized, Unfair Labor Practices

The NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries after being pushed down a flight of stairs at a work site.  The case is Norquay Construction, Inc., 359 NLRB No. 93 (April 16, 2013). 

The facts involved a construction project.  The general contractor was non-union but employees of a subcontractor were represented by a union.  The union’s collective bargaining agreement with the subcontractor allowed access during working hours where employees were working so long as the union made reasonable efforts to notify the subcontractor of their presence and did not interfere with work.  At a construction site, two union representatives approached the non-union site management at a trailer where the project manager had an office.  The union representatives, who had not made an appointment, asked for subcontractor information related to work being performed on the project.  The project manager told the union representatives to look it up themselves on a publicly available website, and then told them to leave.  One union representative then stated that the site could be picketed.  The other union representative stated that picketing would occur only if a violation of area standards had been found (backtracking on the threat to picket).

The project manager “loudly and profanely” demanded that the union representatives leave, at which point they both walked toward the exit.  The project manager then pushed one of the union representatives from behind, sending him down the trailer’s metal steps where he struck his hand and neck on the railing.  The police were called but declined to arrest anyone.

The union representative (not the union itself) filed an unfair labor practice charge alleging that the assault violated Section 8(a)(1) of the Act.  The Administrative Law Judge dismissed the allegation noting that there was no right, contractual or otherwise, for the union representatives to be on site:

[The Employer] had an exclusionary property interest in its construction trailer, which particularly given the purpose and circumstances of [the union representatives'] October 1, 2010 visit, permitted [the Employer] to deny them access.  Alternatively, [the Employer set reasonable and nondiscriminatory restrictions on [the union representatives'] access to its construction trailer, the failure to follow which lost the two representatives access entitlement.  Because [the union representatives] made no effort to schedule a visit before entering the construction trailer, they cannot claim that their ejection from it violated their contractual right of access….In these circumstances while [project manager's] violent expulsion of [union representative] from the construction trailer was repugnant and inexcusable and while it may have transgressed civil or criminal laws, it did not violate the Act.

 In other words, the purpose of the visit did not implicate the Act as the union representatives did not have a right to be there, and there was other remedies available for the assault.  As to the injuries suffered, the Administrative Law Judge noted the union representative “had existing back and hip problems having had prior neck surgery with a 70-day work absence.”

The NLRB disagreed, finding that the assault violated the Act.  The Board noted that the Act protects “actions in furtherance of an area-standards objective…” and that “harassing, or physically assaulting union agents engaged in such activity” has been found to be a violation of the Act.  The Board cited Roger D. Hughes Drywall, 344 NLRB 413, 415 (2005) in support of this proposition, although that case involved an employer calling police and harassing union agents who were picketing on public property.  The Board held that the property interests were not an issue:

The question of [the Employer's] asserted right to exclude the union representatives from the trailer is irrelevant to the disposition of this case because they were leaving at the time of the assault.

This is somewhat contorted reasoning, and begs the question of whether the action, which was not witnessed by any employees, would not have violated the Act if the union representatives had refused the request to leave the premises.  The union representatves’ activity seems less than clearly protected: there was no existing dispute and the union representatives merely were asking for information the employer had no legal obligation to provide.  The Board seems to have extended the Act’s protection to the mere assertion of a right that is related to the Act.

Despite the tenuous connection to the Act, the Board ordered a “make whole” remedy for the union representative but noted that “it remains unsettled whether [the union representative] suffered bodily injury as a result of the assault” and left the matter to a compliance proceeding.

While no one can condone a physical assault, the case stands for the proposition that a mere allegation that physical harm resulted from some allegation is a matter for the NLRB when the union representatives were merely at the site to solicit information unrelated to any existing dispute.  The union representative has other remedies he could pursue instead of having the Board now decide in a compliance proceeding whether he has suffered physical injuries.

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

By Mark Theodore on Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, Mandatory submissions, NLRA, NLRB, Section 7, Social Media Policies, Uncategorized

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act.  In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of the language.

The NLRB released another clue as to how it is looking at employer policies in a recently released Advice Memorandum.  In The Boeing Company, 19-CA-088157, Advice Memorandum (February 28, 2013), the NLRB’s Division of Advice found that the employer’s “Code of Ethics” did not violate Section 8(a)(1) of the Act, “because employees would not reasonably construe its potentially overbroad language to restrict protected concerted activities, in the context of the almost forty pages of explanations and examples immediately following the Code.”

The language at issue

The portions of the Code of Conduct that were alleged to be unlawful were as follows:

Employees will not engage in conduct or activity that may raise questions as to the company’s honesty, impartiality, reputation or otherwase cause embarrassment to the company.

and further:

As an employee of [Employer], I will ensure that:

I will not engage in any activities that might create a conflict of interest for me or the company.

I will follow all restrictions on the use and disclosure of information.  This includes following all requirements for protecting [Employer] information and ensuring that non-Boeing proprietary information is used and disclosed only as authorized by the owner of the information or as otherwise permitted by law.

I will protect all company customer and supplier assets and use them only for appropriate company pre-approved activities.

The employer’s employees, who largely are represented by a union, are required to attend a day-long orientation program.  Both employer and union representatives attend the session to answer questions.  The policy also contains many pages of examples and frequently asked questions.

Advice evaluated each of the statements at issue in light of the tests set forth in Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enf’d mem. 203 F.3d 52 (DC Cir. 1999) and Lutheran Heritage Village-Livonia, 343 NLRB 646, 646-7 (2004), noting specifically that the Board has “cautioned against reading particular phrases in isolation” and urging a view of the rule in its proper context.   Id.

As to the policy’s prohibition of conduct “that may raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment” Advice concluded the phrase was not unlawful because it must be viewed in the broader context of the guidelines.  Advice stated:

The Ethical Guidelines describes numerous activities that could undermine the Employer’s ‘honesty, impartiality, reputation’ or otherwise ’cause embarrassment,’ including bribery, antitrust violations, insider trading and offering and accepting certain ‘business courtesies’ regarding commercial customers and government employees–activities which clearly do not implicate activities protected by Section 7.

Similarly, the prohibition against engaging in activities that may cause a “conflict of interest” was not unlawful because the accompanying Ethical Guidelines “devotes two pages of the types of conflicts of interests the Employer” wishes to avoid and consequently, “it is neither overbroad or ambiguous.”

Finally, the prohibition of using certain company information likewise was found to be lawful because:

Employees would not reasonably construe this language, in context, in restricting Section 7 activities such as discussing wages and other terms and conditions of employment with other employees or union representatives.  Thus, the confidentiality language does not specifically reference and restrict information concerning and their jobs.  

Advice gave some consideration to the fact that the employees were represented by a union:

Additionally, the fact that the Union is present at the employee orientations where the policy is presented would also lead employees to believe that restrictions on the use of Employer assets and information would not extend to employee communications with their employee representatives.

The major takeaway here is similar to the General Counsel’s guidance on social media. The more specific the policy is aimed at the conduct it wishes to regulate, the more likely it will be found to be lawful.  Of course, the presence of the union at the workplace is a factor here but as we have seen previously, the Board has found violations in a handbook despite union representation.

Update: NLRB Seeks U.S. Supreme Court Review Of Recess Appointments

By Mark Theodore on Posted in Duty to furnish information, NLRA, NLRB, Recess appointments, Rulemaking, Witness statements

The NLRB announced today that the agency would seek U.S. Supreme Court review of the D.C. Circuit decision in Noel Canning, which ruled that the President’s recess appointments made last year (and perhaps in the years prior) were unconstitutional.  The decision of the appeals court has cast a great deal of uncertainty over past and current operations of the agency, including:

  • The potential that all longstanding precedents which were overturned in the last few months will be restored.  These include the new cases concerning witness statement disclosure  and the ability of an employer to cancel dues checkoff upon expiration of the collective bargaining agreement.
  • That current cases pending before the Board will be delayed; and
  • That Board initiatives, such as the ambush election rules will be nullified.

The NLRB’s petition to the U.S. Supreme Court is due April 25, 2013, and it is likely a decision will be rendered in the 2013-2014 Court term. We will keep you posted on further developments as they occur.

Ambush Election Rules Fall Into Noel Canning Abyss As Court Puts Hold On Decision

By Mark Theodore on Posted in NLRA, NLRB, Recess appointments, Representation Elections, Rulemaking

The fallout from Noel Canning has been felt far and wide.  The DC Circuit Court’s January 25, 2013 decision certainly put all NLRB decisions made since January 4, 2012 (the date Members Block and Griffin received their recess appointments) in jeopardy.  All cases on appeal to the DC Circuit involving panels which included Block and Griffin have been held in abeyance pending final appeals on the case.

One open question was whether Noel Canning also put into question the validity of decisions involving Member Craig Becker, who also received a recess appointment.  During a portion of Member Becker’s tenure, there were only three Board Members.  If Member Becker’s appointment was invalid, then those decisions and actions by the Board also would be put into question.   Member Becker voted to change the representation election rules.  Those rules were invalidated for lack of quorum based on the fact that Member Hayes (whose appointment was valid) did not vote.  If Member Becker’s appointment ultimately is held to be invalid then the ambush election rules would not be valid as the NLRB did not have a quorum at the time.

The ambush election case is on appeal to the DC Circuit.  Oral argument was scheduled for April 2013.  The appeals court decided to hold the election regulations case in abeyance until the legal issues surrounding the recess appointments are sorted out.  The Court’s order issued yesterday in Chamber of Commerce et al. v. NLRB, 11-cv-02262 (February 19, 2013).

We recently held a webinar on the impact of the Noel Canning decision.  For those interested, they can replay the entire webinar using these instructions:

REPLAY:

- Go to university.learnlive.com/proskaueronlineevents

- Login with your existing username and password

- If you do not have a username and password, please select the “New Student Registration” button to create a new account. You will need to enter the Proskauer Company Code: 9736529

- Select the “Catalog” tab at the top of the page. Select the “Enroll” button to the right of the course titled: Labor Relations Update: Live! The Latest at the NLRB

— Noel Canning and Beyond Archive

- Select the “Continue” button in the pop up.

- Select the “Launch” button to open the course and begin watching. Please be sure to allow pop-ups and click the boxes that appear on the screen to receive CLE cred

 

Of course, we will be monitoring developments on this issue and will update as necessary.

The End of an Error

By Ronald Meisburg on Posted in NLRB

Unnoticed and with no fanfare, the Board brought the two member era to a close with its adoption of the last of the two member Board decisions, The Fremont-Rideout Health Group, 359 NLRB No. 51 (January 15, 2013).  The Board adopted the previous decision in the same case, reported at 354 NLRB 453, which had issued on August 27, 2009. 

The issue addressed in the Fremont-Rideout case involved whether the Board should issue a bargaining order as part of the standard relief when an employer has been found to have unlawfully withdrawn recognition from an incumbent union.  The Board applied extant case law for the proposition that it would issue such an order only after considering the extent to which, in the context of an individual case, such an order would infringe on the NLRA right of employees to select their representative for collective bargaining; whether other purposes of the NLRA would override that right; and whether alternative remedies were available.  

In that sense, the Fremont-Rideout decision is unremarkable, because – like the two member Board – the current Board simply adopted existing, controlling law.  (However, in adopting the previous decision, the current Board did omit the footnotes of Member Schaumber, criticizing existing law and suggesting that he would favor revisiting and possibly changing it.) 

Of greater interest is what the case tells us about the current imbroglio involving the recess appointment issue.  When that issue is finally resolved, there will still be months and years of follow-up, perhaps lasting as long as the three and one-half years in this case, before cases decided by the current, improperly constituted Board, are eventually reviewed by a future, properly constituted Board.  Beyond that, it is possible that the employer here in the Fremont-Rideout case will simply take the latest ruling back to the court of appeals, this time on a different Board jurisdictional defect.  And perhaps another three and one-half years or longer will pass before this case is finally finished at the Board.